Ault v. Clark

• Decision Date: 17 May 1916
• Docket Number: No. 9351.,9351.
• Parties: AULT v. CLARK et al.
• Court: Indiana Appellate Court

62 Ind.App. 55

112 N.E. 843

AULT

v.CLARK et al.

No. 9351.

Appellate Court of Indiana, Division No. 1.

May 17, 1916.

Appeal from Circuit Court, Lake County; W. C. McMahan, Judge.

Action by John A. Ault against Edith Clark and others. From a judgment for defendants, plaintiff appeals. Affirmed.Otto J. Bruce and W. Vincent Youkey, both of Crown Point, for appellant. Schuyler C. Dwyer and J. Will Belshaw, both of Lowell, and Bomberger, Curtis, Starr & Peters, of Gary, for appellees.

HOTTEL, J.

Appellee has filed a motion to dismiss this appeal. Our examination of this motion and the record convinces us that the case may be affirmed on its merits, and that a consideration of such motion is not important or necessary.

The complaint herein is in two paragraphs. In the first paragraph, which is in the usual short form to quiet title, appellant seeks to quiet title to the following real estate in Lake county, Ind., viz.:

“A part of the east half of the southwest quarter of section twenty-three (23), township thirty-three (33) north, range nine (9) west of the second principal meridian, and more particularly described as commencing at a point in the center of the county road (now street) one hundred ninety-eight (198) feet west of the northwest corner of lot 1 in Clark's addition to the town of Lowell, in said county and state; thence south eighty-nine and three-fourths feet (89 3/4); thence west to the creek; thence northerly along the creek to the center of the said county road (now street); thence east along the center of the said county road (now street) to the place of beginning.”

The second paragraph seeks to recover possession of the same real estate, and alleges that defendants (appellees) now hold possession thereof without right, to appellant's damage in the sum of $100.

There was a trial by jury, and at the close of the evidence the court peremptorily instructed the jury as follows:

“Gentlemen of the jury, this has resolved itself into a law question. The court is required to construe a description in a deed which described the land conveyed as being 11 acres off the south end of the east half of the southwest quarter of the section. The court construes that as a matter of law to mean 11 acres extending across the entire south side of it, or a strip of land 22 rods wide, extending entirely across the south end of the 80. The evidence in this case discloses and shows that no part of the land described in this complaint falls within that eleven acres described in that deed. That being true the plaintiff has shown no title in himself. Therefore your verdict must be for the defendants.” (Our italics.)

Pursuant to this instruction a verdict was returned in appellees' favor. A motion for new trial filed by appellant was overruled, and judgment was rendered on the verdict. Proper exceptions were saved by appellant to the action of the court in giving said instruction, and to the ruling on his motion for new trial, and each of said rulings is assigned as error in this court and relied on for reversal.

[1] The action of the trial court in giving such instruction is not ground for independent assignment of error, but is properly presented by being assigned as one of the grounds of the motion for a new trial. White v. State ex rel. (Sup.) 109 N. E. 905, 907, and cases cited. While the other grounds of such motion challenge the verdict as not being sustained by sufficient evidence and as being contrary to law, a disposition of the question presented by the action of the trial court in giving said instruction will in effect dispose of the appeal. To show title to the land described in his complaint appellant offered in evidence a patent from the United States and numerous consecutive conveyances, through which, as claimed by appellant, title to said real estate was finally conveyed to Nathaniel H. Foote on August 21, 1862. Appellant then offered certain record evidence showing the death of Nathaniel H. Foote, the appointment of his widow as administratrix of his estate, the filing of a petition by her to sell certain described lands of decedent to pay his debts, an order authorizing the sale of such lands, the sale thereof, the report of sale, the approval thereof, and the deed made thereunder. Among other lands, set out by such administratrix in her petition as lands owned by decedent and sought to be sold to pay his debts, was the following:

“The undivided two-thirds of 11 acres of land off of the south part of the southeast quarter of the southwest quarter of section twenty-three (23), town thirty-three (33) north, of range nine (9) west.”

This same description appears throughout such proceedings, including the report of sale and the deed made by such administratrix. Appellant then offered the quitclaim deed of the widow of said decedent for her undivided one-third of the same lands sold by her as administratrix, and in her deed appears the same description above indicated. The deeds of said administratrix and widow of Nathaniel H. Foote to Nichols, dated May 2 and May 5, 1864, respectively, constituted a necessary link in the chain of title upon which appellant relies as proof of his title to the lands described in his complaint, and it is conceded by both him and appellees that it was to these deeds that the trial court referred in its peremptory instruction, supra. It is also in effect conceded by appellant that the description in said deeds does not in fact cover any part of the lands described in his complaint; but appellant asserts in effect that by verbal testimony he has identified the lands, viz., that he showed that the description contained in the deed to Foote in fact described 11.16 acres, and that such tract was the only tract of land in section 23, township 33 north, range 9 west, ever owned by Foote.

[2] Upon this evidence it is insisted by appellant that he has shown a complete record title, or at least made a prima facie case, which entitled him to have the question of his title submitted to the jury. Of course, if there was any proper evidence from which the jury might have reasonably inferred that appellant was the owner of the land described in his complaint, the instruction was improper, as the right to direct a verdict in such a case “can only be upheld where it can be said that the evidence was clearly insufficient to establish one or more facts essential to plaintiff's cause of action.” West v. National Casualty Company, 112 N. E. 115, and cases cited; Barker v. Chicago, etc., R. Co., 51 Ind. App. 669, 671, 99 N. E. 135;Sullivan v. Indianapolis, etc., R. Co., 55 Ind. App. 407, 414, 103 N. E. 860. In support of his contention appellant relies on certain rules applicable in proper cases to the construction and interpretation of deeds, which may be stated as follows and are supported by the authorities cited after each.

[3] It is not the office of a description in a deed of conveyance to identify the land intended to be conveyed, but to furnish the means of identification. Rucker v. Steelman, 73 Ind. 396;Scheible v. Slagle, 89 Ind. 323;Hannon v. Hilliard, 101 Ind. 310;Trentman v. Neff, 124 Ind. 503, 24 N. E. 895;Collins v. Dressler, 133 Ind. 290, 32 N. E. 883;Edens v. Miller, 147 Ind. 208, 46 N. E. 526;Elsea v. Adkins, 164 Ind. 580, 74 N. E. 242, 108 Am. St. Rep. 320;Warner v. Marshall, 166 Ind. 88, 107, 75 N. E. 582.

[4] The rule as to construction of the description of premises in a deed is very liberal, to the end that “the intent of the parties, if it can by any possibility be gathered from the language employed, will be effectuated.” Key v. Ostrander, 29 Ind. 1, 6;Hannon v. Hilliard, 101 Ind. 310;Roehl v. Haumesser, 114 Ind. 311, 15 N. E. 345;Peck v. Mallams, 10 N. Y. 509, 532.

[5] Extraneous and parol evidence is competent to apply the terms of a deed to the subject-matter. Warner v. Marshall, supra, and cases cited.

[6] Where two conflicting or contradictory descriptions of the same tract or parcel of real estate appear in a deed, or where the description is vague and obscure or uncertain and indefinite, resort may be had to extrinsic facts or oral evidence to aid in ascertaining, if possible, the intent of the parties. Hornet v. Dumbeck, 39 Ind. App. 482, 78 N. E. 691.

[7] There can be no doubt about the correctnessof these rules or the necessity for the application in a proper case; but, as indicated by the language in which they are stated, they are applied only when it becomes necessary to look beyond the deed to ascertain the intent of the parties expressed therein as to the land intended to be conveyed by such deed. In other words, they are resorted to for the purpose of explaining and effectuating the intent of the parties as expressed in their deeds, but never to contradict or thwart such intent, and where the description in the deed is not ambiguous but is certain and complete there is no...